The text of CPR Part 35, having remained stable (warts and all) for many months, is to undergo a major revision on 1 October 2009

On 1 October 2009 the 50th update to the Civil Procedure Rules takes effect. This update contains significant changes to the text of Part 35 and its Practice Direction. Of course, these changes follow hot on the heels of changes in the Criminal Procedure Rules. This all makes the topic of the Society of Expert Witnesses Autumn Conference very prescient – What’s an Expert Supposed to Do? Rules you didn’t know about but soon will. If you are concerned to keep up to date with all these changes, the Society pricing system means that whilst you could attend their conference as a non-member, you might just as well join the Society and attend as a member. You can find out more by visiting the Society web site.

CPR Part 35

For Part 35 itself, the changes:

provide a new definition of ‘expert’

define a ‘single joint expert’ for the first time

provide, in small claims track or fast track cases, that permission will normally only be given to call expert evidence on a particular issue from one expert

make provision for written questions to experts to be proportionate (which will be a relief to many experts!), and

make consequential amendments and attempt to remove the use of third person singular pronouns (not entirely successfully).

Part 35 Practice Direction

For the Practice Direction, these changes are more extensive, and result in renumbering of the various sections and the removal of a number of simple reiterations of the rules.

The first important change is that the declarations experts must make in their reports are being ‘beefed up’. So, the old requirement that the report should “contain a statement that the expert understands his duty to the court, and has complied and will continue to comply with that duty” is replaced with [PD3.2(9)]:

“contain a statement that the expert-

(a) understands their duty to the court, and has complied with that duty; and
(b) is aware of the requirements of Part 35, this practice direction and the Protocol for Instruction of Experts to give Evidence in Civil Claims.”

New form of the Statement of Truth

Vitally, the wording of the mandatory statement of truth is also changed, from:

“I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion.”

to

“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.”

So, from the start of October 2009 all reports should contain this new form of the Statement of Truth if they are to be CPR-compliant.

Single Joint Experts

The Practice Direction has much more to say about SJEs, perhaps in an attempt to revive the use of SJEs which has fallen back in recent times. Where we used to have some brief guidance on how an SJE should deal with cases involving multiple disciplines, we are now treated to an eight-part discourse on how the court should determine whether or not to direct that an SJE be appointed in the first place.

“When considering whether to give permission for the parties to rely on expert evidence and whether that evidence should be from a single joint expert the court will take into account all the circumstances in particular, whether:

(a) it is proportionate to have separate experts for each party on a particular issue with reference to-

(i) the amount in dispute;

(ii) the importance to the parties; and

(iii) the complexity of the issue;

(b) the instruction of a single joint expert is likely to assist the parties and the court to resolve the issue more speedily and in a more cost-effective way than separately instructed experts;

(c) expert evidence is to be given on the issue of liability, causation or quantum;

(d) the expert evidence falls within a substantially established area of knowledge which is unlikely to be in dispute or there is likely to be a range of expert opinion;

(e) a party has already instructed an expert on the issue in question and whether or not that was done in compliance with any practice direction or relevant pre-action protocol;

(f) questions put in accordance with rule 35.6 are likely to remove the need for the other party to instruct an expert if one party has already instructed an expert;

(g) questions put to a single joint expert may not conclusively deal with all issues that may require testing prior to trial;

(h) a conference may be required with the legal representatives, experts and other witnesses which may make instruction of a single joint expert impractical; and

(i) a claim to privilege makes the instruction of any expert as a single joint expert inappropriate.”

Expert Discussions

Finally, the Rules Committee has added an entirely new section on Discussions between experts - and this contains some very helpful new material. For example, we finally have an explicit veto in the hand of the expert against lawyers attending a meeting. We also have it spelt out that the purpose of these meetings is not for experts to negotiate - advice we sought to have the Civil Justice Council include in the Experts’ Protocol to no avail!

The text of this new section is:

“9.1 Unless directed by the court discussions between experts are not mandatory. Parties must consider, with their experts, at an early stage, whether there is likely to be any useful purpose in holding an expert’s discussion and if so when.

9.2 The purpose of discussions between experts is not for experts to settle cases but to agree and narrow issues and in particular to identify:

(i) the extent of the agreement between them;

(ii) the points of and short reasons for any disagreement;

(iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and

(iv) any further material issues not raised and the extent to which these issues are agreed.

9.3 Where the experts are to meet, the parties must discuss and if possible agree whether an agenda is necessary, and if so attempt to agree one that helps the experts to focus on the issues which need to be discussed. The agenda must not be in the form of leading questions or hostile in tone.

9.4 Unless ordered by the court, or agreed by all parties, and the experts, neither the parties nor their legal representatives may attend experts discussions.

9.5 If the legal representatives do attend-

(i) they should not normally intervene in the discussion, except to answer questions put to them by the experts or to advise on the law; and

(ii) the experts may if they so wish hold part of their discussions in the absence of the legal representatives.

9.6 A statement must be prepared by the experts dealing with paragraphs 9.2(i) – (iv) above. Individual copies of the statements must be signed by the experts at the conclusion of the discussion, or as soon thereafter as practicable, and in any event within 7 days. Copies of the statements must be provided to the parties no later than 14 days after signing.

9.7 Experts must give their own opinions to assist the court and do not require the authority of the parties to sign a joint statement.

9.8 If an expert significantly alters an opinion, the joint statement must include a note or addendum by that expert explaining the change of opinion.”

The Experts’ Protocol

The Civil Justice Council’s Experts’ Protocol has long been inculcated into the CPR through the inclusion of it in the Practice Direction. These changes just required section 13.5 of that document to be changed to refer to the new form of the mandatory declarations and statement of truth.

Further information

You can access the revised CPR by visiting the expert library on the Register web site and following the link under Rules and guidance to the Civil Procedure Rules. Of course, we will also be including these new rules in the new edition of our Expert Witness Year Book for 2010.